Protection of Women from Domestic Violence Act, 2005

This article is about Indian law. For other related topics, see Outline of domestic violence.
Protection of Women from Domestic Violence Act, 2005
An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.
Citation Act No. 43 of 2005
Enacted by Parliament of India
Date assented to 13 September 2005
Date commenced 26 October 2006

The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of India enacted to protect women from domestic violence. It was brought into force by the Indian government from 26 October 2006. The Act provides for the first time in Indian law a definition of "domestic violence", with this definition being broad and including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse. It is a civil law meant primarily for protection orders and not meant to penalize criminally.[1] The act does not extend to Jammu and Kashmir, which has its own laws, and which enacted in 2010 the Jammu and Kashmir Protection of Women from Domestic Violence Act, 2010.[2]

Definition

The Protection of Women from Domestic Violence Act 2005 differs from the provision of the Penal Code - section 498A of the Indian Penal Code - in that it provides a broader definition of domestic violence.[3]

Domestic violence is defined by Section 3 of the Act as[4] “any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it:

  1. harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
  2. harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
  3. has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
  4. otherwise injures or causes harm, whether physical or mental, to the aggrieved person.”

The Act goes on, through the section Explanation 1, to define "physical abuse","sexual abuse", "verbal and emotional abuse" and "economic abuse".[4]

Scope

Primarily meant to provide protection to the wife or female live-in partner from domestic violence at the hands of the husband or male live-in partner or his relatives, the law also extends its protection to women living in a household such as sisters, widows or mothers. Domestic violence under the act includes actual abuse or the threat of abuse whether physical, sexual, verbal, emotional or economic.[3] Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.

The salient features of the Protection from Domestic Violence Act, 2005 are as follows:

While "economic abuse" includes deprivation of all or any economic or financial resources to which the victim is entitled under any law or custom whether payable under an order of a Court or otherwise or which the victim requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by her, payment of rental related to the shared household and maintenance and disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the victim has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the victim or her children or her stridhan or any other property jointly or separately held by the victim and prohibition or restriction to continued access to resources or facilities which the victim is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household, "physical abuse" means any act or conduct which is of such a nature as to cause bodily pain, harm or danger to life, limb, or health or impair the health or development of the victim and includes assault, criminal intimidation and criminal force.

Application to the magistrate

An application regarding domestic violence can be presented to the magistrate seeking one or more reliefs mentioned in sections by:

Jurisdiction of court

The first class magistrate court or metropolitan court shall be the competent court within the local limits of which

Any order made under this Act shall be enforceable throughout India While disposing application the magistrate shall take in to consideration any domestic incident report received from the protection officer or service provider. The relief sought under this section includes the issuance of order of payment or compensation or damages without prejudice to the right of such person to institute suit for compensation or damages for injuries caused by the act of domestic violence. If the magistrate is satisfied that an application prima facie discloses that the respondent is committing or has committed an act of domestic violence or there is a likelihood of such violence, he may grant following exparte interim order against the respondent on the basis of affidavit of the aggrieved person. Magistrate can issue different orders such as Protection order, residence order, monetary relief, custody order or compensatory orders as per the circumstances of the case.

In case of an earlier decree of compensation or damages passed by any other court, in favour of aggrieved person, the amount if any paid shall be set off against the order of amount payable under this act. The application to the magistrate shall be as nearly possible to the formats prescribed under this Act and Rules. After receiving the application the Magistrate shall fix the date of first hearing within 3 days and the magistrate shall endeavor to dispose of every application be within a period of 60 days of the first hearing. The notice of the date of hearing shall be given by the magistrate to the protection officer who shall get it served to the respondent. At any stage of the application, the magistrate may order, counselling of the respondent or aggrieved person either singly or jointly with any member of service provider. The magistrate may secure the service of suitable person preferably a woman including a person engaged in the welfare of women for assisting the court in the discharge of its function. If the circumstance of the case so warrant and if either party so desires the magistrate may conduct the proceedings on camera.

Right to reside in a shared house hold

Every women in a domestic relationship shall have the right to reside in the shared household, irrespective of the fact that she has right, title or beneficial interest in it. The aggrieved person shall not be evicted from the shared house hold or any part of it by the respondent without the procedure established by the law. The Hon'ble Supreme court in a case, S.R Batra and another V Smt Taruna Batra, held that the exclusive property of mother -in-law of Smt Taruna Batra is not a shared household as defined in S.2 of the Act. shared property means the house belongs to husband or taken rent by him or joint family property. Wherever the couple lived together in the past and treating that property as shared household would lead to chaos and such interpretation would be absurd.

Different kinds of order issued by the Magistrate

Protection orders

After giving an opportunity to the aggrieved person and respondent of being heard and the magistrate is satisfied that a prima facie case of domestic violence has taken place or is likely to take place, pass a protection order in favour of the aggrieved person prohibiting the respondent from the following acts such as Committing any acts of domestic violence

Residence orders

The magistrate being satisfied that a domestic violence has taken place, pass residence order-

No order shall be made against women under this section. Magistrate may impose additional condition and pass any other order to protect the safety of the aggrieved person or her child. Magistrate is also empowered to order direction the concerned station house officer of the police station to give protection to the aggrieved person r to assist in implementing his order. Magistrate may also impose on the respondent to direct stridhan or any other property or valuabale security she is entitled

Monetary relief

The magistrate may direct the respondent to pay monetary relief to meet the expenses of the aggrieved person and any child as a result of domestic violence and such relief include

Including the order under or in addition to an order of maintenance under section 125 criminal procedure code or any other law.

The quantum of relief shall be fair reasonable and consistent with the standard of living to which the aggrieved person is accustomed to. Magistrate can order a lump sum amount also . On failure of the respondent to make payment of this order, magistrate shall order employer or debtor of the respondent to directly pay to the aggrieved person or to deposit in the court a portion of the salary or wage due to the respondent. Magistrate can order a lump sum amount also . On failure of the respondent to make payment of this order, magistrate shall order employer or debtor of the respondent to directly pay to the aggrieved person or to deposit in the court a portion of the salary or wage due to the respondent.

Custody orders

Magistrate can grant temporary custody of any child or children to the aggrieved person or to the person making application on her behalf and specify the arrangements for visit of such child by the respondent. Magistrate can refuse the visit of such respondent in such case if it may harmful to the interest of the child.

Compensation orders

Magistrate may pass order directing the respondent to pay compensation to the petitioner for injuries including mental torture and emotional distress caused by the acts of domestic violence committed by the respondent.

Copies of orders passed by the magistrate shall be supplied free of cost to the parties concerned and police officer and service provider

Any relief available under this Act may also be sought in any other legal proceedings before a civil court,family court or criminal court and such relief may be sought in addition to and along with relief sought for in suit, or legal proceeding before civil or criminal court

Criticism

Some have criticized the law as having too little force, serving chiefly as a civil, rather than criminal, law—requiring a further offense by the accused respondent (such as violating a Protection Order issued under this law) before triggering criminal law sanctions against the respondent (such as arrest and imprisonment). However, groups involved in drafting the law believed this would provide more rapid and flexible relief for the victim.[5][6]

Men's organizations such as the Save Indian Family Foundation have opposed the law, arguing that it might be misused by women during disputes.[3][7]

Renuka Chowdhury, the Indian Minister for Women and Child Development, agreed in a Hindustan Times article that "an equal gender law would be ideal. But there is simply too much physical evidence to prove that it is mainly the woman who suffers at the hands of man".[8]

Former Attorney General of India Soli Sorabjee has also criticized the broad definition of verbal abuse in the act.[9]

According to the then President of India, Pratibha Devisingh Patil, "Another disquieting trend has been that women themselves have not been innocent of abusing women. At times women have played an unsavory, catalytic role in perpetrating violence whether against the daughter-in-law, the mother-in-law or female domestic helps. Instances exist whereby protective legal provisions for the benefit of women have been subjected to distortion and misuse to wreak petty vengeance and to settle scores. Some surveys have concluded that 6 to 10 percent of dowry complaints are false and were registered primarily to settle scores. It is unfortunate if laws meant to protect women get abused as instruments of oppression. The bottom-line therefore, is the fair invocation of legal provisions and their objective and honest implementation."[10]

See also

References

  1. ↑ http://www.icrw.org/files/images/Reducing-HIV-Stigma-and-Gender-Based-Violence-Toolkit-for-Health-Care-Providers-in-India-Annex-4.pdf
  2. ↑ http://www.tribuneindia.com/news/jammu-kashmir/crime/4-157-booked-in-2-009-domestic-violence-cases-in-five-years/57598.html
  3. 1 2 3 Datta, Damayanti (4 December 2006). "The new laws of marriage". India Today. Retrieved 29 March 2013.
  4. 1 2 http://wcd.nic.in/wdvact.pdf
  5. ↑ Pandey, Geeta, et. al., BBC News, "100 Women 2014: Violence at home is India's 'failing'", 29 October 2014, BBC News
  6. ↑ Hornbeck, Amy; Bethany Johnson; Michelle LaGrotta; & Kellie Sellman; "The Protection of Women from Domestic Violence Act: Solution or Mere Paper Tiger?", Loyola University Chicago International Law Review, Volume 4, Issue 2, Spring/Summer, 2007, pp.273-307, Loyola University, Chicago (also online at: )
  7. ↑ Gupta, Monobina (27 October 2006). "Malevolence for women's law – Men go to PM against female 'terrorist activity'". The Telegraph, Calcutta. Archived from the original on 16 October 2012. Retrieved 28 March 2013.
  8. ↑ Sandhu, Veenu (5 November 2006). "Men running scared now". Hindustan Times. Retrieved 4 October 2013.
  9. ↑ Sorabjee, Soli (5 November 2006). "SUNDAY DEBATE: Is verbal abuse domestic violence? No". The Times of India. Retrieved 4 October 2013.
  10. ↑ "Speech of the Hon'ble President of India, at the National Conference of Lady Lawyers and Lady Teachers, at Yavatmal". Press Information Bureau, Government of India. Retrieved 4 October 2013.

External links

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